Delegate David Albo (R) has introduced House Bill 84 which sets forth a rebuttable presumption favoring joint physical custody in cases where a no fault divorce is granted. The Bill would add language to the Va. Code section 20-124.2 that would state:

In any action in which a decree for divorce is entered on the grounds set forth in subdivision A (9) of § 20-91 and in which custody or visitation is at issue, there shall be a rebuttable presumption that it is in the best interests of the child that the parents be awarded joint physical custody and that no parent’s share of physical custody shall be for a period of less than two-fifths of the child’s time. Such an award shall be made in all cases absent evidence demonstrating that such an award is not in the best interests of the child.

Albo is making an interesting attempt towards encouraging shared custody in recognition that children need both parents in their lives, but similar legislative approaches in the past have not met with much success. This could be the fate of Albo’s bill as it may create some unintended and unwanted consequences. First, it is likely to generate more reason to file and litigate a fault divorce in order to gain leverage in the custody issue. This will have the effect of driving up the cost of litigation as well as the emotional costs attenuated to divorce in general. Second, it doesn’t address the presumption issue in the vast number of custody cases that are filed in Juvenile and Domestic Court where no divorce is pending in Circuit Court. Unfortunately in order to avoid the presumption of joint physical custody, parties may run to J & D Court instead, where there can be concurrent jurisdiction, and seek a custody determination where the presumption does not exists. Appeals from J & D Court may become more frequent and litigation and emotional costs will be driven up further.

If you have your own thoughts on this matter, here is Delegate Albo’s telephone number (703-451-3555) and email (DelDAlbo@house.virginia.gov).